ABSTRACT
While the US tort system allows injured patients to allege a cause of action against healthcare providers for organizational negligence, patients suffer from a power imbalance against healthcare organizations that inhibits their ability to obtain evidence of systemic negligence. Unlike plaintiffs, the individual provider defendants have insight into and the ability to prove organizational negligence. By asserting an affirmative defense of comparative negligence against the healthcare organization, individual defendant providers can accomplish five goals: (1) decrease their share of responsibility, (2) assure accountability of all responsible tortfeasors, (3) expose systemic causes of treatment errors, (4) deter organizational negligence, and (5) promote the replacement of individual-focused blame culture in healthcare with organization-focused safety culture. An individual’s healthcare provider’s assertion of comparative fault against a healthcare organization for organizational negligence provides potential for immediate benefits to the individual provider and long-term benefits to patient safety that outweigh the practical and doctrinal complications that discourage such a defense. The ability of healthcare providers to refocus the discussion of medical errors in medical malpractice lawsuits to include organizational errors is in line with the modern error prevention research and can provide one practical step towards promoting systemic learning and patient safety.
Duffourc, Mindy, Repurposing the Affirmative Defense of Comparative Fault in Medical Malpractice Cases to Improve Patient Safety (2018) 16 Indiana Health Law Review 21 (2018).
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